FBI's Forensic Test Full of HolesLee Wayne Hunt is one of hundreds of defendants whose
convictions are in question now that FBI forensic evidence has been
discredited.
By John Solomon
Washington Post Staff Writer
Sunday, November 18, 2007

Hundreds of defendants sitting in prisons nationwide have been
convicted with the help of an FBI forensic tool that was discarded more
than two years ago. But the FBI lab has yet to take steps to alert the
affected defendants or courts, even as the window for appealing
convictions is closing, a joint investigation by The Washington Post
and "60 Minutes" has found.

The science, known as comparative bullet-lead analysis, was first used
after President John F. Kennedy's assassination in 1963. The technique
used chemistry to link crime-scene bullets to ones possessed by
suspects on the theory that each batch of lead had a unique elemental
makeup.

In 2004, however, the nation's most prestigious scientific body
concluded that variations in the manufacturing process rendered the
FBI's testimony about the science "unreliable and potentially
misleading." Specifically, the National Academy of Sciences said that
decades of FBI statements to jurors linking a particular bullet to
those found in a suspect's gun or cartridge box were so overstated that
such testimony should be considered "misleading under federal rules of
evidence."

A year later, the bureau abandoned the analysis.

But the FBI lab has never gone back to determine how many times its
scientists misled jurors. Internal memos show that the bureau's
managers were aware by 2004 that testimony had been overstated in a
large number of trials. In a smaller number of cases, the experts had
made false matches based on a faulty statistical analysis of the
elements contained in different lead samples, documents show.

"We cannot afford to be misleading to a jury," the lab director wrote
to FBI Director Robert S. Mueller III in late summer 2005 in a memo
outlining why the bureau was abandoning the science. "We plan to
discourage prosecutors from using our previous results in future
prosecutions."

Despite those private concerns, the bureau told defense lawyers in a
general letter dated Sept. 1, 2005, that although it was ending the
technique, it "still firmly supports the scientific foundation of
bullet lead analysis." And in at least two cases, the bureau has tried
to help state prosecutors defend past convictions by using court
filings that experts say are still misleading. The government has
fought releasing the list of the estimated 2,500 cases over three
decades in which it performed the analysis.

For the majority of affected prisoners, the typical two-to-four-year
window to appeal their convictions based on new scientific evidence is
closing.

Dwight E. Adams, the now-retired FBI lab director who ended the
technique, said the government has an obligation to release all the
case files, to independently review the expert testimony and to alert
courts to any errors that could have affected a conviction.

"It troubles me that anyone would be in prison for any reason that
wasn't justified. And that's why these reviews should be done in order
to determine whether or not our testimony led to the conviction of a
wrongly accused individual," Adams said in an interview. "I don't
believe there's anything that we should be hiding."

The Post and "60 Minutes" identified at least 250 cases nationwide in
which bullet-lead analysis was introduced, including more than a dozen
in which courts have either reversed convictions or now face questions
about whether innocent people were sent to prison. The cases include a
North Carolina drug dealer who has developed significant new evidence
to bolster his claim of innocence and a Maryland man who was recently
granted a new murder trial.

Documents show that the FBI's concerns about the science dated to 1991
and came to light only because a former FBI lab scientist began
challenging it.

In response to the information uncovered by The Post and "60 Minutes,"
the FBI late last week said it would initiate corrective actions
including a nationwide review of all bullet-lead testimonies and
notification to prosecutors so that the courts and defendants can be
alerted. The FBI lab also plans to create a system to monitor the
accuracy of its scientific testimony.

The Post-"60 Minutes" investigation "has brought some serious concerns
to our attention," said John Miller, assistant director of public
affairs. "The FBI is committed to addressing these concerns. It's the
right thing to do."

The past inaction on bullet-lead contrasts with the last time the FBI's
science was called into question, in the mid-1990s, when 13 lab
employees were accused of shoddy work and of giving overstated
testimony involving several disciplines, including explosives as well
as hair and fiber analysis. Back then, the Justice Department reviewed
hundreds of cases in which FBI experts testified, and it notified
prisoners about problems that affected their convictions. The
government did so because prosecutors have a legal obligation to turn
over evidence that could help defendants prove their innocence.

Current FBI managers said that they originally believed that the public
release of the 2004 National Academy of Sciences report and the
subsequent ending of the analysis generated enough publicity to give
defense attorneys and their clients plenty of opportunities to appeal.
The bureau also pointed out that it sent form letters to police
agencies and umbrella groups for local prosecutors and criminal defense
lawyers.

Even the harshest critics concede that the FBI correctly measured the
chemical elements of lead bullets. But the science academy found that
the lab used faulty statistical calculations to declare that bullets
matched even when the measurements differed slightly. FBI witnesses
also overstated the significance of the matches.

The FBI's umbrella letters, however, glossed over those problems and
did little to alert prosecutors or defense lawyers that erroneous
testimony could have helped convict defendants, one of the recipients
said.

"Frankly, the letters that they sent them, you know, were minimizing
the significance of the error in the first place," said defense lawyer
Barry Scheck, whose nonprofit Innocence Project has helped free more
than 200 wrongly convicted people. The letters said that "our science
wasn't really inaccurate. Our interpretation was wrong. But the
interpretation is everything."

The FBI said last week that the 2005 letters "should have been
clearer." Scheck has now been asked to assist the FBI's review.
Since 2005, the nonpartisan Forensic Justice Project, run by former FBI
lab whistle-blower Frederic Whitehurst, has tried to force the bureau
to release a list of bullet-lead cases under the Freedom of Information
Act. The Post joined the request, citing the public value of the
information. But the government has stalled, among other things seeking
$70,000 to search for the documents.

"By stonewalling and delaying the release, Justice has ensured that
wrongfully convicted citizens are deprived of their right to appeal or
seek post-conviction relief because the statute of limitations in many
states has expired," said David Colapinto, the lawyer for the group.
As part of its review, the FBI will release all bullet-lead case files
involving convictions.

The Scope of the Cases
Most of the estimated 2,500 instances in which the FBI performed
bullet-lead exams involved homicide cases that were prosecuted at the
state and local levels, where FBI examiners often were summoned as
expert witnesses for the prosecution.

To compile an independent list, The Post and "60 Minutes" conducted a
nationwide review, interviewing dozens of defense lawyers, prosecutors
and scientific experts. The effort also included a sweep of electronic
court filings conducted by four summer associates at the New York law
firm Skadden Arps Slate Meagher & Flom.

In many of the cases that raise the most compelling questions, the
inmates might have a hard time winning the public's sympathy. Some had
criminal backgrounds and most were convicted with at least some
additional circumstantial evidence linking them to gruesome crime
scenes. But the common thread is that removing the flawed bullet-lead
evidence has created reasonable doubt about guilt in the minds of legal
experts, the courts and at least one juror.

In North Carolina, Lee Wayne Hunt,
48, remains in prison after being convicted 21 years ago of a double
murder. Hunt was an admitted marijuana dealer, but has steadfastly
denied involvement in the killings. The FBI testified that its
bullet-lead analysis linked fragments from the victims to a box of
bullets connected to Hunt's co-defendant. That was the sole forensic
evidence against Hunt. State prosecutors recently conceded that the
analysis should not be considered "scientifically supported and relied
upon."

In addition, the attorney for Hunt's co-defendant, who committed
suicide in prison, has since declared that his client carried out the
murders alone.

Despite both developments, Hunt has been denied a new trial.

"What they're relying on here is technicalities to keep an innocent man
in prison," said Richard Rosen, Hunt's attorney.

Another North Carolina case highlights the impact that FBI bullet-lead
testimony had on local jurors. James Donald King faces execution after
being convicted of killing his two wives. He admitted to killing his
first wife, spent time in prison, was released on parole, remarried and
then was convicted of murdering his second wife.

The court is considering whether to grant a new trial.

"If the state had not introduced evidence linking a bullet in Mr.
King's car to the bullet fragments in the victim, there would have been
reasonable doubt in my mind as to Mr. King's guilt," juror Michelle
Lynn Adamson said in an affidavit supporting his appeal.

Other defendants have had mixed results:

In Maryland, the Court of Appeals last year reversed
the murder conviction of Gemar Clemons and ordered a new trial,
concluding that the FBI's bullet-lead conclusions "are not generally
accepted within the scientific community and thus are not admissible."

In New Jersey, courts have reversed and reinstated
convictions in cases involving bullet lead. The conviction of one
defendant, Michael Behn, was reversed, but he recently was re-convicted
on other evidence.

Shane Ragland's conviction in the 1994 killing of a
University of Kentucky football player was reversed after Kathleen
Lundy, an FBI bullet-lead examiner, pleaded guilty to giving false
testimony in his case about bullet-lead manufacturing. A few weeks ago,
Ragland pleaded guilty to a lesser charge and is now free.

Ernest Roger Peele, a retired FBI agent who testified
about bullet matching in 130 cases, stands by his testimony but said
that sometimes the nuances of science get "lost in the adversarial
nature of the courtroom." He said he would no longer tell jurors that
bullets can be linked to specific boxes because of the science
academy's findings.

Peele, who said he was frustrated that he was never contacted by the
academy, added that his bullet matches were meant to be "a part of a
puzzle" and never the only forensic evidence. "Is it possible there are
innocent people in jail? Yes. Is it possible that bullet lead was part
of that process? Yes."

The Origins of the Science
The FBI's bullet-lead analysis was created more than four decades ago
to link suspects to crimes in cases in which bullets had fragmented to
the point where traditional firearms tracing -- based on gun-barrel
groove markings -- would not work.

So FBI scientists used chemistry to try to find matches. Their
assumption was that bullets made from the same batch of lead would have
the same chemical composition. U.S. bullet-makers recycle lead from car
batteries and melt it down in huge amounts, and it was believed that
each batch would produce bullets sharing the same trace elements.

The FBI first used the technique after Kennedy's assassination, hoping
to determine whether various bullet fragments came from the same gun.
In July 1964, then-FBI Director J. Edgar Hoover wrote to the commission
investigating the assassination that the bureau's findings were "not
considered sufficient" to make any matches.

By the early 1980s, the bureau was the only practitioner of the science
and routinely used it to help state and local police link crime-scene
bullets to those in a gun or a box owned by a suspect. There are few
federal murder statutes, but the FBI routinely helps local law
enforcement by providing forensic expertise in homicide cases.

In the mid-1990s, Lundy used the science to help prove that Clinton
White House lawyer Vincent W. Foster committed suicide, internal FBI
documents show.

In the early days, bullet fragments were subjected to neutron beams
that would allow scientists to measure the presence and amounts of at
least three chemical elements: antimony, arsenic and copper. If two
bullets had similar measurements of those three elements -- the FBI
allowed for a small margin of error -- they were declared a match.

In 1996, the bureau switched to a new method called "inductively
coupled plasma optical emission spectroscopy," in which scientists
identified and measured seven trace elements in the bullets, adding the
elements bismuth, cadmium, tin and silver. The goal was to increase the
precision of the tests. But at the same time that it was measuring more
elements, the FBI doubled the margin of error for declaring matches.

"Not enough suspects were being caught in the new net using seven
elements, so they chose to use a bigger net," said Clifford Spiegelman,
a statistician at Texas A&M University who reviewed the FBI's
statistical methods for the science academy.

The bureau conducted a study in 1991 that called bullet-lead analysis a
"useful forensic tool" that produced "accurate" and "reproducible"
matches.

The study, however, raised two concerns.

First, it found that bullets packaged 15 months apart -- a span that
assumed separate batches of lead -- had the exact composition,
potentially undercutting the theory that each batch was unique.

Second, it found that bullets in a single box often had several
different lead compositions. That finding, it cautioned, should have
"significant impact on interpretation of results in forensic cases."

Peele, the retired bullet-lead examiner, was the primary author of that
study. He said he still felt comfortable having told jurors in the past
that bullets from the same box could be expected to match, as long as
his remarks were carefully qualified.

In the Hunt case, he testified that his match of the crime-scene
bullets to those in the suspects' box was "typical of everything we
examined coming from the same box or the next closest possibility would
be the same type, same manufacturer, packaged on or about the same day."

Peele said that he always tried to tell jurors that some bullets in the
same box might not match. Still, he said it was reasonable for jurors
to conclude that matching bullets could have come from the same box. "I
don't think it's misleading as long as it's fully explained," he said.

Some of Peele's colleagues went further. FBI examiner John Riley told a
Florida jury: "It is my opinion that all of those bullets came from the
same box of ammunition." A New Jersey prosecutor suggested that the
bullets matched by the FBI were as unique as a "snowflake or
fingerprint."

Today, the FBI regards all such testimony as inaccurate. "The science
does not and has never supported the testimony that one bullet can be
identified as coming from a particular box of bullets," said Adams, the
retired FBI lab director.

A Challenge From Within
The FBI's about-face was prompted by a challenge from within its ranks.

William Tobin, an FBI lab metallurgist for a quarter-century, won
accolades working on cases such as the crash of TWA Flight 800, in
which he helped prove that the plane was downed by an accidental
fuel-tank explosion, not terrorism. Shortly before he retired, Tobin
was approached by a woman who believed that the bullet-lead science
used against her brother, a New Jersey murder defendant, was flawed.
Still employed by the bureau, Tobin was not permitted to help.

But when he retired in 1998, he decided to look further. Bullet
matching had always been done by the lab's chemists, and as a
metallurgist, Tobin wondered about their assumptions. Soon he joined
with Erik Randich, a metallurgist at Lawrence Livermore National
Laboratory.

By 2001, the two had finished a study that challenged the key
assumptions that the FBI had been making about bullet lead. They found
that bullets made from the same batch did not always match, because
subtle chemical changes occurred throughout the manufacturing process.
Tobin bought bullets at several stores in Alaska and found that a large
number of bullets with the same composition and manufacturing date were
often sold in the same community, suggesting that it was wrong to
assume that a bullet match could be narrowed to one suspect.

"It hadn't been based at all on science but, rather, had been based on
subjective belief," Tobin said in an interview. "Courts, and even
practitioners, had been seduced by the sophistication of the analytical
instrumentation for over three decades."

Soon, Tobin began appearing as a witness for defendants challenging FBI
bullet-lead matches. Courts began to take notice, too, and the FBI
suddenly faced a barrage of questions about a science that had gone
unchallenged for three decades.

Adams asked the National Academy of Sciences in 2002 to examine the
FBI's work, temporarily halting new bullet-lead matches. Two years
later, the academy's findings stunned the bureau.

The panel concluded that although the FBI had been taking accurate
bullet-lead measurements in its lab, the statistical methods and its
expert testimonies were flawed.

The science "does not . . . have the unique specificity of techniques
such as DNA," and "available data does not support any statement that a
crime bullet came from a particular box of ammunition," the panel
concluded. All the FBI could say going forward was that bullets made
from the same batch "are more likely" to match in chemical makeup than
those made from different batches. Adams soon declared that such
testimony was so general that it had no value to jurors, and he ended
the technique.

The FBI Response
The FBI went on the offensive to portray its decision in the best light.

In a news release dated Sept. 1, 2005, the bureau declared that it
"still firmly supports the scientific foundation of bullet lead
analysis" but that it was ending the technique because of the questions
about its "relative probative value," the "costs of maintaining the
equipment" and the "resources necessary to do the examinations."

The bureau also sent form letters to the more than 300 police agencies
it had assisted with the science and to the umbrella groups
representing local prosecutors and local criminal defense lawyers so
they could "take whatever steps they deem appropriate."
The letters cited the academy's report but did not call attention to
the magnitude of the FBI's internal concerns.

For instance, the letters stated that the impact of the academy's
findings "on previously issued examination reports remains
unaddressed." In fact, the FBI had conducted its own review to
determine how often bad statistics led to mistaken matches.

In March 2005, the chief of the FBI chemistry unit that oversaw the
analysis wrote in an e-mail that he applied one of the new statistical
methods recommended by the National Academy of Sciences to 436 cases
dating to 1996 and found that at least seven would "have a different
result today." Marc A. LeBeau estimated that at least 1.4 percent of
prior matches would change.

If the FBI employed other statistical methods the number of non-matches
would be "a lot more," LeBeau wrote. In fact, when the bureau tested
one method recommended by the academy on a sample of 100 bullets, the
results changed in the "large majority of the cases," he wrote.

Despite the concerns, the FBI provided affidavits in at least two cases
seeking to help prosecutors sustain convictions that were based on
bullet-lead matches.

In one such affidavit introduced in Maryland, the FBI cited the
academy's report but did not mention it faulted the bureau's
statistical methods.

That omission concerns the chairman of the academy panel.

The affidavit "does not discuss the statistical bullet-matching
technique, which is key and probably the most significant scientific
flaw found by the committee," said Kenneth MacFadden, a private
chemistry expert.

MacFadden and Spiegelman said they also believed the affidavit was
misleading, because it estimates that the maximum number of .22-caliber
bullets in a batch of lead was 1.3 million. The academy said the number
could be as high as 35 million.

In a May 12, 2005, e-mail, the deputy lab director told LeBeau, "I
don't believe that we can testify about how many bullets may have come
from the same melt and our estimate may be totally misleading."

FBI officials said Friday they will stop using the affidavit.

"They said the FBI agents who went after Al Capone were the
untouchables, and I say the FBI experts who gave this bullet-lead
testimony were the unbelievables," Spiegelman said.